FBI Claims Bureau Can’t Locate Manual Used to Process FOIA Requests

The FBI has denied the existence of the reference manual its officials use to process Freedom of Information Act (FOIA) requests, even though previous versions of the document have been publicly available for at least three years.

The FBI’s Freedom of Information and Privacy Acts (FOIPA) Reference Manual, commonly known as the “Green Book,” is a set of guidelines for agency officials in charge of responding to FOIA requests, specifically about the proper procedures for processing requests for FBI documents or documents from any other agency under the purview of Department of Justice. The Green Book also contains volumes of numbered memos from directors and other officials in the agency’s FOIA department, instructing FOIA officials on how to respond to requests regarding certain procedures the FBI conducts, organizations under surveillance by the agency, and other persons and events of interest.

Last year, The Public Record filed a FOIA to the FBI, requesting a “complete and unredacted copy of the latest and all previous versions” of the Green Book, “including all updates and numbered memos.” The request was one part of a massive FOIA request The Public Record filed that day, in which we sought all records relating to how the agency processes FOIPA requests.

The FBI denied The Public Record’s request, stating that it could “locate no responsive main file records subject to the Freedom of Information Act in its files.” When The Public Record appealed the FBI’s decision, we received a curious response from the Office of Information Policy (OIP), the DOJ office charged with handling administrative appeals to denied FOIA requests.

Sean O’Neill, the Chief of the Administrative Appeals Staff of the OIP, defended the FBI’s denial of our request. He said, “The FBI has never maintained records related to a ‘Green Book.’”

The OIP’s response is confusing, to say the least. In July 2012, Cryptocomb, a website dedicated to the publishing of government documents in the public interest, received a copy of the Green Book in response to a FOIA request Cryptocomb filed with the FBI a month earlier.

The 979-page document appears to be an older version of the FBI’s reference manual, the first three sections of which largely concern explaining the intricacies of the Freedom of Information and Privacy Acts, and detailing specific legal cases that have informed the way in which the agency processes requests for government documents. The last section comprises several pages of numbered memos, describing the various avenues requested documents travel through before being considered worthy of release.

For example, Memo 22 in Cryptocromb’s version of the Green Book describes the process by which “Legal Technicians” (L.T.s) must submit documents they deem worthy of classification to the Document Classification Unit (DCU). A subsection of the memo, entitled, “File Classifications Requiring DCU Review,” lists several classified topics, each with an assigned number. If the subject of a FOIA request falls under any of the topics listed in the memo, it must be processed through the DCU. Among the topics are “Overthrow or Destruction of the Government,” “Sedition,” “Domestic Security/Revolutionary Activities,” “Foreign Police Cooperation,” and “Domestic Security Informants.”

But although Cryptocomb received a version of the Green Book in 2012, most of the documents were more than a decade old, with the dates that most of the numbered memos the manual contains ranging from the early 1990s to the early 2000s. It remains to be seen whether or not the FBI’s FOIPA reference manual Cryptocomb received was the most updated version at the time.

Even more distressing is the fact that a head administrator of the Office of Information Policy, whose job is to adjudicate appeals for when a FOIA request is initially turned down, would state in writing that the FBI “has never maintained records relating to a ‘Green Book,’” when clearly a version that was released in 2012 exists online.

Daniel Metcalfe said OIP’s response to The Public Record’s appeal smacks of irresponsibility. An adjunct professor at American University’s Washington College of Law, Metcalfe served in the Department of Justice for nearly four decades, and was the founding director of the OIP in 1981. In an interview with The Public Record in May 2015, he expressed dismay that Sean O’Neill, the chief OIP administrator who Metcalfe hired out of law school, would be in charge of denying FOIA appeals.

“Sean O’Neill, a relative newcomer to OIP, is now adjudicating administrative appeals, that is truly alarming,” Metcalfe said. “The authority to act on administrative appeals rests under statute with the head of the agency and at Justice the Attorney General delegates that to a high-level official. The fact that the director of OIP is no longer taking responsibility for administrative appeals speaks volumes about the difficulties that that office faces. It is a case of OIP being irresponsible in the full meaning of the word.”

Metcalfe said it is apparent that O’Neill justified his denial of The Public Record’s appeal based on a narrow focus of the term, “Green Book,” instead of taking into account The Public Record clarified the term by asking for its official name as well.

“It certainly allows a requester to conclude that the Bureau (and OIP secondarily) is seeking to unduly constrain the request by focusing on the phrase to the exclusion of all other descriptive details within it,” he said. “It is poor practice to say the very least, indefensible in court at worst.”

Metcalfe maintained that he would never have given such a response when he was the director of the OIP, regardless of whether he was working for a liberal Democratic or a conservative Republican administration. He said the original purpose of the OIP was to provide requesters “a fresh, additional look at the administrative level.”

As for O’Neill’s response, Metcalfe said, “[I]t would be bad enough for an ordinary agency, but it’s all the worse when it’s within the lead agency for overseeing proper FOIA compliance. Here, OIP is not providing any sort of adult supervision.”

Although The Public Record is still challenging the FBI’s denial of our request for the Green Book and the OIP’s subsequent assertion that the agency does not maintain records on such a manual, the FBI did release 197 pages of numberedmemos to The Public Record in March 2015. Like the memos contained within Cryptocromb’s version of the Green Book, the numbered memos we received instruct FBI officials on how to process specific FOIA requests, going into detail from everything from its administrative appeals process to whether an official should grant or deny a request for Congressional documents.

Particularly interesting are the memos related to information on past court cases concerning the FBI’s surveillance of certain individuals or organizations. Memo 16, for example, specifically mentions a 1989 settlement between the FBI and the National Lawyers Guild, involving the FBI’s past surveillance of the NLG. According to the memo, the FBI is prohibited from “using, or granting access to” any records involving the Guild prior to 1989 until they are transferred to the National Archives and Records Administration (NARA) “in or after the year 2025.”

The memo provides two exceptions for access to these records: “1) The records can be used by the government to defend itself in civil actions for activities prior to 10/13/89; and 2.) The records can be used to respond to FOIA requests from the NLG submitted on or after 1/1/94.” The memo states the FBI will “deny all other FOIA requests” for the records.

Also of interest is Memo 50, which concerns requests for J. Edgar Hoover’s personal files. According to the memo, the founder and first director of the FBI responded to a FOIA request in 1998 for Hoover’s “Official and Confidential (O&C)” files, which “consist of 164 folders on various individuals and topics.”